Since social isolation measures ceased on 1st October, businesses have been able to re-open. Employees have returned to work. But employees--even those who have been vaccinated--remain at risk. The situation also creates a new issue: Are Covid-19 infections in the workplace considered work-related?
Work-related "accidents" are regulated in the Law on Occupational Safety and Hygiene No. 84/2015/QH13 ("LOSH"). A work-related accident is one which (i) causes injury to an employee's body or causes the employee's death, and (ii) occurs during the course of work in connection with the employee's performance of her job. LOSH does not define an "accident".
One view is that an employee who has been infected by Covid-19 in the workplace, has suffered a work-related accident. If so, the employee is eligible to be compensated if her work capacity has been reduced by 5% or more or if she dies. Another view is that a Covid-19 infection is not a work-related accident because Covid-19 is not an "accident"; it is a "disease". We leave aside for these purposes, the question where the infection took place.
While the LOSH does not provide a clear answer, the Division of Labor Safety and Hygiene (which is a unit of the Ministry of Labor, War Invalids and Social Affairs) ("DLSH") issued an official letter dated December 6, 2021 in response to an inquiry of a company in Dong Nai regarding the Covid-19 infection of an employee while the employee was isolated at the workplace ("Official Letter"). DLSH concluded that the Covid-19 infection received while the employee worked at the factory, ate and slept on-site (known as "3T" or "Three on spot") was not a work-related accident. DLSH stated that Covid-19 is a "disease". The Ministry of Health is considering whether to add Covid-19 to the list of occupational diseases for which employees are entitled to receive benefits from the Social Insurance Fund. If so, and as the matter is currently being discussed, Covid infection as a qualifying disease would apply only to persons who work in circumstances of high risk Covid-19 exposure--say, persons in the health sector or persons who participate in a Covid-19 prevention program.
Although an Official Letter does not have the force of law, it expresses the views and interpretations of a legal provision and gives guidance on how certain issues should be addressed. Of further note, an official letter only applies to the specific recipient and to the case under consideration. It can be changed in the future if it is in conflict with other official letters or legal instruments. There can even be conflicting official letters.
The International Labor Organization ("ILO") has collected information on the practices of several countries to see whether Covid-19 infection is widely considered to be a work-related accident or occupational disease and in what circumstances. According to the ILO's report, a number of countries do consider infection by Covid-19 as a work-related injury. The vast majority of authorities have expressly recognized that it could be considered as an occupational disease. Certain countries have established a rebuttable presumption that it is work-related for certain categories of workers, such as health workers and first responders who are particularly exposed. In a small number of countries, the authorities actually have stated that Covid-19 infection at the workplace should be treated as a work-related accident.
It appears that the DLSH's opinion as stated in the Official Letter is consistent with practices in most countries--that is, the DLSH does not consider Covid-19 infection at the workplace as a work-related accident, but it could be treated as an occupational disease for certain categories of workers. We believe that the Ministry of Health will issue a circular to address the matter.
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